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CHAPTER 3 FACTS WHICH NEED NOT BE PROVED Contents 3.1 Facts judicially noticeable by Courts 3.2 Facts which the Court presume as proved 3.3 Facts which are to be regarded as conclusive proof 3.4 Facts Admitted 3.5 Estoppel Key Terms Assignment Questions Short Questions 2 6 10 15 17 24 25 25

CHAPTER 3 () FACTS WHICH NEED NOT BE PROVED

3.1 Facts judicially noticeable by Courts

Section 56 of the Evidence Act provides that, No fact of which the Court will take judicial notice need be proved.

Facts of which Court must take judicial notice are prescribed by section. 57 of the Evidence Act as follows:-

( 1.

all laws or rules having the force of law now or heretofore in force, or hereafter to be in force, in any part of the Republic of the Union of Myanmar or India or Pakistan;

2.

all public Acts passed or hereafter to be passed by (Parliament of the United Kingdom of Great Britain and Ireland) , and all local and personal Acts directed by (Parliament of the United Kingdom of Great Britain and Ireland) to be judicially noticed;

3. 4.

Articles of War for His Britannic Majestys Army, Navy or Air Force;

The course of proceeding of (Parliament of the United Kingdom of Great Britain and Ireland) and of the Union Parliament;

5.

The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland:

6.

All seals of which English Courts take judicial notice; the seals of all the Courts of the Republic of the Union of Myanmar: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public;

and all seals which any person in authorized to use any Act of (Parliament of the United Kingdom of Great Britain and Ireland) or other enactment in force in the Republic of the Union of Myanmar;

7.

The accession to office, names, titles functions and signatures of the persons filling for the time being any public office in any part of the Republic of the Union of Myanmar, if the fact of their appointment to such office is notified in the Gazette;

8.

The existence, title and national flag of every State or Sovereign recognized by (the President of the Union);

9.

The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Gazette;

10. 11.

The territories under the dominion of the British Government;

The commencement, continuance and termination of hostilities between (the Republic of the Union of Myanmar) and any other State or body of persons;

12.

The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorized by law to appear or act before it;

13.

The rule of the road on land or at sea.

In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

3.2 Facts which the Court presume as proved

Section 4 of the Evidence Act provides that Whenever it is directed by this Act that the Court shall presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Therefore those facts which come under this part of the section need not be proved. ()

Matters mentioned in section 79, 80, 81, 83, 84, 85, and 89 need not be proved for they are provided as matters which the Court shall presume as proved. ( ) ( ) () () () ( ) ()

Section 79. Presumption as to genuineness of certified copies The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in the Republic of the Union of Myanmar, (or by any officer in any other part of the Republic of the Union of Myanmar who is duly authorized thereto by the President of the Union), to be genuine.

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it the official character which he claims in such paper.

Section 80. Presumption as to documents produced as record of

evidence

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

Section

81 presumption as to Gazettes news-papers, private Acts of parliament

and other document ()

Section 83. presumption as to maps or plans made by authority of Government. ()

Section 84. presumption as to collections of laws and reports of decisions. () Section 85. presumption to powers of attorney. ( )

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Section 4 of the Evidence Act also provides that, Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until is disproved, or may call for proofs it.

() The Court may presume books, maps and charts provided by section 87, telegraphic messages provided by section 88, and thirty years old documents provided by section 90 as proved. So these also need not be proved. ( ) () ( ) ( )

3.3

Facts which are to be regarded as conclusive proof

Section 4 of the Evidence Act provides that When one fact is declared by this Act to be conclusive proof another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. Those facts need not be proved.

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()

Section 41 of the Evidence Act provides that A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing is relevant. ()

Such judgment, order or decree is conclusive proof----

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that any legal character which it confers accrued at the time when such judgment, order or decree came into operation:

that any legal character, to which it declares any such person to be entitled accrued to at person at the time when such judgment, order or decreed declares it to have accrued to that person:

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

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Section 112 of the Evidence Act provides that The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. ()

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Evidence that a child is born during wedlock is sufficient to establish its legitimate and shifts the burden of proof to the party, seeking to establish the contrary. The presumption under this section is a conclusive presumption of law. Matter which come under section 41 and 112 are matters which are to be regarded as conclusive proof. So they need not be proved. () ()

3.4

Facts Admitted Section 23 of the Evidence Act provides that, In civil cases no admission is relevant, if it is made either upon an express

condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.

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Explanation- Nothing in this section shall be taken to exempt any legal practitioner from giving evidence of any matter of which he may be compelled to give evidence under section 126.

Admissions as aforesaid are not admissible in evidence so they need not be proved. This section protects communications made without prejudice

Confidential overtures of pacification and any other offers or proposition between litigating panties, expressly or impliedly made without prejudice are excluded on grounds of public policy.

without rejudice

Section 58 of the Evidence Act provides that, No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

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( ) -

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

3.5

Estoppel There are 3 kinds of Estoppel ()

1. 2.

Estoppel by Matter of Records.

Estoppel by Deed and

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3.

Estoppel by Conduct.

Estopped by Matter of Records mean that one cannot deny that the facts contain in the judgment of a competent Court are not true. If it is an incorrect judgment everyone has right to appeal.

Estoppel by Deed can be found in section 91, 92 and 93 () () () Estoppel by conduct can be found in section 115 to 117 of the Evidence Act. ( ) ( )

Section 115 of the Evidence Act provides that, When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

( )

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Illustration A intentionally and falsely lead B to believe that certain Land belongs to a and thereby induces B to buy and pay for it. The Land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title. A B A A B

A This section says that when one person has by his(a) (b) (c) declration, act,or comission,

intentionally caused or permitted another person

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(i) to believe a thing to be true , and (ii) to act upon such belief, neither he nor his representative shall be allowed to deny the truth of that thing in any suit or proceeding between himself and such person or his representative. To invoke the doctrine of estoppel three conditions must be satisfied. (1) (2) (3) representation by a person to another. the other shall have acted upon the said representation and such action shall have been detrimental to the interests of the person to whom the representation has been made. Even where the first two conditions are satisfied but the third is not, there is no scope to invoke the doctrine of estoppel. Section. 116 of the Evidence Act provides that, "No tenant of immoveable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immoveable property; and no person who came upon any immoveable property by the licence of the person in possession there of shall be permitted to deny that such person had a title to such possession at the time when such licence was given. ( )

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Section 117 of the Evidence Act provides that, "No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had at the time when the bailment or licence commenced, authority to make such bailment or grant such licence. ( )

Explanation (1)- The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn. ()

Explanation (2) - If a bailee delivers the goods bailed to a person other than the bailor he may prove that such person had a right to them as against the bailor.

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()

Matter is which come under sections 115 to 117 are not admissible in evidence. So they need not be proved. ( ) ( )

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Key Term Judicial notice Admission Prejudice Estoppel Record Deed Conduct Deny Declaration act omission representation Estoppel by Matter or Records Estoppel by Deed Estoppel by Conduct licensee licensor

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Assignment Questions 1. 2. What is estoppel? What conditions are required to invoke the doctrine of estoppel?

Short Questions 1. 2. How many kinds of estoppel are there? What facts are to be regarded as conclusive proof?